THE QUEEN vARTHUR WILLIAM TAYLOR
[2003] NZCA 190
•11 August 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 58/03
THE QUEEN
v
ARTHUR WILLIAM TAYLOR
Hearing:24 July 2003
Coram:Gault P
Baragwanath J
Panckhurst JAppearances: C J Tennet for Appellant
K Raftery for Crown
Judgment:11 August 2003
JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J
[1] This conviction appeal is by way of rehearing in terms of the Crimes (Criminal Appeals) Amendment Act 2001. The appellant was found guilty of aggravated robbery in July 1994 and later that month he was sentenced to two years imprisonment, cumulative upon an effective term of twelve years imprisonment which he was already serving in relation to other offences. Subsequently an appeal against conviction was dismissed on the papers in December 1994. The appeal has now been fully reargued.
[2] The grounds of appeal are effectively three-fold:
[a]that the trial Judge erred in his summing-up by commenting adversely on the appellant’s election not to give evidence,
[b]that a ruling which prevented reference to the fact that the principal offenders had been discharged before trial pursuant to s347 of the Crimes Act 1961 occasioned a miscarriage of justice, and
[c]that the trial Judge erred in admitting the evidence of the main Crown witness, Mr A, and in not sufficiently warning the jury concerning the risks attendant upon acceptance of his evidence.
Before turning to the individual grounds it is convenient to shortly outline the case at trial.
The Crown case
[3] On 21 June 1991 an antique and jewellery store in Remuera Road, Auckland was robbed at gun-point by two armed and disguised men. They left the shop on a motor-cycle with jewellery to a value well in excess of $200,000.
[4] Subsequently persons named Peers and Condren were charged as the principal offenders in the robbery. However, they obtained a discharge before trial pursuant to s347. Such ruling was made by another Judge.
[5] The case against Mr Taylor was largely dependent upon evidence supplied by Mr A. He was a criminal and was in prison in June 1991, when the robbery occurred. While there he said that he was visited by the appellant whom he had known for many years. Mr Taylor told him, he said, of an intention to commit a robbery upon the antique and jewellery shop. Contact between Mr A and the appellant continued throughout 1991 during which, according to Mr A, details of commission of the robbery were revealed to him.
[6] In early 1992 Mr A was released from prison and spent some weeks residing with the appellant and his wife (who was charged with receiving jewellery from the robbery and stood trial with her husband). During this time there were further discussions in which the appellant revealed additional details relevant to the robbery.
[7] In the result Mr A gave evidence before the jury based on such discussions to the effect that the appellant was the organiser of the robbery. He said the actual offenders used a motor-cycle to commit the crime. The appellant hired a rental car and was in possession of a cell phone . The appellant’s role was to be in the rental vehicle listening to the police radio frequency on a scanner, so that the offenders may be warned by pager, if required. Following commission of the robbery the actual offenders were to abandon the motor-cycle and burn their clothing at a pre-arranged location.
[8] At trial the Crown adduced certain evidence which was supportive of Mr A’s account. This included evidence of the purchase by the appellant of two incinerators shortly before the robbery (said by the Crown to be used to burn the clothing), the hire of a pager and rental car over the relevant period, a visit by the appellant to a jewellery shop a few days after the robbery during which he made inquiries of the manager concerning disposal of jewellery items, and, somewhat later, the seizure by the police of jewellery hidden in two locations at the address occupied by the appellant and his wife. In addition there was evidence from a manufacturing jeweller, witness A’s brother, that in early 1992 A had asked him to appraise some rings and diamonds. This was during the period when A was staying with the appellant and his wife. Witness A gave evidence about this which linked the rings and diamonds back to the appellant and his wife.
[9] The case was presented on the footing that it was not necessary to prove who the actual robbers were, so long as the involvement of the appellant as the, or an, instigator of the robbery was established.
Comment upon the failure to give evidence
[10] To appreciate this ground of appeal some further context is required. Present counsel, Mr Tennet, represented the appellant until partway through the trial. The
first day and a half was taken up with a voir dire concerning the admissibility of witness A’s evidence. The next two and a half days were largely occupied by the evidence and cross-examination of that witness. From the fifth day the appellant represented himself. The evidence, including defence evidence, occupied about four further days during which the appellant vigorously cross-examined a number of the Crown witnesses.
[11] When the Judge summed up the case to the jury on the ninth day of the trial, he commented on no fewer than five occasions on the failure of both accused to give evidence. The first was in these terms:
Neither of these accused gave evidence. Accused are not required under our system to give evidence. They are entitled as they have here, to sit back and see if the prosecution can prove its case. It means that you don’t have the opportunity of seeing them at first hand give evidence. Mr Taylor has made some pretty valiant efforts to give evidence from counsel’s table, but of course what we haven’t had in this case is the opportunity for you to see either of them questioned or examined upon the assertions which they made to the Police, or the theories which they have flowed in front of other people. This case has had an enormous amount of material out of Police files, job sheets, and lord only knows what else. There was no reason why Mr and Mrs Taylor should give evidence. They are not required to do so. But it has certain consequences which won’t escape you. First of all, despite the onslaught there has been against Mr (A), there is not one piece of direct evidence which conflicts with what he says. Because you see, neither Mr nor Mrs Taylor have chosen to give you evidence about the matter. So what he says is uncontradicted evidence.
Don’t get me wrong on this one, they don’t have to give evidence. Some of the way things have been put in this case made it almost sound as though they weren’t allowed to give evidence. Those rules changed in 1898. They can give evidence if they want to. But they have chosen not to do so here, but rather to take a broadside – release an avalanche at Mr (A). But what Mr (A) says, both Mr and Mrs Taylor have told him, is in this case uncontroverted evidence. The persons who could have given evidence to the contrary so you could weigh and assess the other side of it, have chosen not to do so. That is a factor which you will weigh. But don’t assume that because they didn’t give evidence they are guilty. That would be just plain silly.
[12] Mr Tennet submitted that it was wrong of the Judge to comment at all upon the failure to give evidence in this particular case or, alternatively, that the comment made was “stronger than was necessary and was permissible …”. Mr Raftery for the Crown stressed the need to read the passage in the context of the summing-up as a whole, since he suggested that the summing-up was a vigorous one in other respects and favourable to the defence as well, especially in putting the defence case against A’s reliability.
[13] We turn to the further passages in the summing-up which were also by way of comment upon the appellant’s failure to give evidence. The main comment (paragraph [11] above) had occurred early in the summing-up at pages 4 and 5 of the transcript. At page 16 when discussing whether Mr A was a believable witness and what reason he had to name the appellant and his wife “rather than the Smiths, or the Jones, or anyone else …” the Judge comments that “We haven’t heard from the Taylors as to any reason why they would be picked out …”. Later on the same page he said there was “not one skerrick of evidence from the people who were part of the conversations”.
[14] A little later at page 24 when summarising the defence case and referring to the appellant’s police interview the Judge said:
You might have thought he protested rather too much because the great opportunity he had to tell the whole story was to walk into the witness box. But he chose not to do that. Of course he doesn’t have to. But you might have thought that some of these protestations from counsel’s table and telling the Police officers “call me any time you like, I’m glad to tell you the whole story” and his speech yesterday about why he sacked Mr Tennet “because I know all the facts and I wanted to get all the facts out”. I don’t know how true that rings with you when he chooses not to give evidence. But that is what he told you and you will decide what you put on it.”
[15] And finally at page 30 when referring to a submission Mr Taylor made to the jury that he was not likely to have “poured his heart out to someone (Mr A) who was a known nark”, the Judge noted that this was a submission which the jury would have to weigh and added “although we haven’t had evidence from Mr Taylor, you have certainly observed him in full flight so I suppose you have had some opportunity to assess him.”
[16] After the jury retired Mr Taylor submitted that the Judge, having commented on the fact that neither accused gave evidence, was obliged to tell the jury that there might be a variety of reasons why an accused person chooses not to give evidence. The Judge declined to direct the jury further on the point.
[17] With reference to his primary submission that no comment should have been made Mr Tennet argued that of necessity a strong attack had been made upon the character of witness A. This undoubtedly placed the appellant at risk of an application being made for leave to cross-examine him upon his previous convictions and as to credit pursuant to s5(4)(b) of the Evidence Act 1908. In that situation, said counsel, the trial Judge erred in the exercise of his discretion by deciding to comment upon the failure of the accused to give evidence. Mr Raftery, who was the prosecutor at trial, accepted that the case was one where leave to cross-examine the appellant might have been sought. He also said that nothing was done to test the water concerning the likely fate of a leave application, before the election not to give evidence was made.
[18] With regard to the argument that since the appellant in giving evidence might have become susceptible to cross-examination as to his credit it was therefore inappropriate for a s366 comment to be made, we are unpersuaded. No authority was referred to in support of that proposition. Where there has been a frontal attack upon an important prosecution witness, there may well be greater scope for leave to cross-examine an accused to be granted. But that risk cannot circumscribe the judicial discretion to comment upon an election not to give evidence. The very fact and strength of the attack may render comment more appropriate. Whether comment is justified always remains a matter of judgment to be exercised with regard to the atmosphere of the trial. But we are at least satisfied that simply because an accused may face a leave application if he ventures into the witness box cannot immunise him against comment where he does not do so.
[19] The principles which apply when there is challenge on appeal to comment made by a trial Judge are described in two decisions of this Court. In R v Andrews [1992] 3 NZLR 62 Eichelbaum CJ at 65 said this:
Section 366 of the Crimes Act 1961 permits the Judge to comment on the fact that the accused has refrained from giving evidence. As Cooke P pointed out in R v Butcher [1992] 2 NZLR 257, 268 an accused who refrains from giving evidence does so at risk of comment. The President returned to the topic when delivering the judgment of the Court in R v McCarthy [1992] 2 NZLR 550 saying that in the ordinary run of cases trial Judges were not to be discouraged from exercising their right of comment; with the proviso that the direction should be appropriately balanced. However, although it is a matter for the Judge’s discretion it is clear that the discretion is not an unqualified one, and may be subject to review if exercised in inappropriate circumstances, or should the comment go too far; see eg R v Accused (CA78/88 [1988] 2 NZLR 385, 389.
[20] And in R v Hines (No 3) (1998) 16 CRNZ 236 Gault J in delivering the judgment of the Court said at 241:
Directions to the jury by way of comment on the fact that the accused has refrained from giving evidence give rise to issues of some difficulty. They must be considered against the fundamental values of our criminal justice system that the onus of proof is on the prosecution and that an accused has the right to remain silent and to refrain from giving evidence.
There is no prohibition against comment by a Judge in summing up. That he or she may do so is clear from s366(1) Crimes Act. As with all directions, any comment must be fashioned to the particular circumstances of the case and must be balanced and fair.
[21] The principal passage in which the comment is found, as set out above, is certainly expressed in strong terms. But like any aspect of a summing-up such comment must be read in its overall context. Here the summing-up as a whole was expressed in forthright terms in relation to a number of aspects. The comment pursuant to s366 was no different in terms of language and style from the balance of the summing-up.
[22] Importantly the Judge correctly identified the true significance of the election of the appellant not to give evidence in the circumstances of this case. Witness A was a prison inmate at the time of the robbery. The evidence he gave as to the appellant’s involvement was based solely upon what he had been told by the appellant in a series of conversations over a period of time. This was an obvious and significant feature of the trial. Only by the appellant giving evidence could the content of the relevant conversations be directly challenged. This the Judge rightly identified as the effect of the election not to testify. At the same time he said more than once in the relevant passage that there was no obligation upon an accused to give evidence. He ended on the emphatic note that it would be plain silly to assume guilt on account of that failure.
[23] Despite the strength of the comment, we are not persuaded that the Judge went too far. Not only must what was said be viewed in context but the explanation supplied as to the effect of not giving evidence and the warnings contained in the relevant passage are also significant. This in our view was not comment which minimised the onus of proof or so undermined the right of an accused not to testify as to deny the existence and place of those fundamental values.
[24] Of greater concern is the repetition of the Judge’s comment on which Mr Tennet particularly relied. Mr Raftery submitted that there was justification for each and that the overall effect was not such as to risk distracting the jury from the cardinal direction as to onus of proof.
[25] The comments referred to in paragraphs [13], [14] and [15] above, on their face, give the impression of unnecessary repetition. But their appropriateness depends on the overall context. This was plainly an unusual trial, conducted robustly by the appellant in person who, it appears, was not meticulous in distinguishing evidence and argument nor always moderate in his assertions. At times it is necessary, to ensure that there is balance, for a Judge to comment on the evidence or lack of it in unconventional terms. Allowing for that, we consider that as part of a review of the attack on the reliability of witness A the comments referred to in paragraph [13] cannot be said to have been inappropriate. Those set out in paragraphs [14] and [15] above appear to be unwarranted repetition although that necessarily is an assessment without the advantage of direct experience of the dynamics of the trial. The real issue however, is whether overall the Judge’s comments went so far as to risk distraction of the jury from the onus of proof and consequent miscarriage of justice.
[26] It was unfortunate that there were these repeated references to the failure of the appellant to give evidence at various points in the summing-up. It would have been preferable if the matter had been left on the basis of the longer exposition given at the outset. That was the logical place for comment to be made, since at that point the Judge was explaining to the jury that there was no onus upon an accused to prove anything, albeit an election not to give evidence may leave the essence of the Crown case uncontradicted.
[27] Nevertheless the Judge made equally emphatic references to where the onus of proof lay and also repeated the direction to the jury that the failure to give evidence could not found an assumption of guilt. Having read and reread the summing-up we are satisfied that taken in total context the further comments did not entail a miscarriage of justice.
[28] This ground of appeal therefore fails.
Reference to the s347 ruling
[29] On the sixth day of the trial the Judge made a ruling that there was to be “no reference to the disposition of the case as against Mr Peers and Mr Condren”. He said he would give reasons for the ruling in due course. Such was done the day after the verdicts were delivered in Ruling (No 4) dated 8 July 1994.
[30] In that ruling the Judge said:
Mr Raftery and Mr Kaye, as counsel before me, and to an extent Mr Taylor (who has more than a passing knowledge of the law) all agreed with the general proposition that the verdict reached by a different jury (and by analogy by a Judge in the circumstances which exist here) is irrelevant in this trial. It amounted to no more than evidence of the opinion of that Court. It is a straight-forward application of the principle most often associated with the name Hollington v F Hewthorne & Co Ltd [1943] KB 587.
Then after reference to the Privy Council decision in Hui Chi-ming v R [1991] 1 AC 34 the Judge acknowledged that there may be exceptional circumstances where the interests of justice required that evidence of the outcome of another case be admitted into evidence, but he was unpersuaded that such was the case in this instance. The Judge regarded the Crown case as “not dependent upon or influenced by” the identity of those who actually committed the robbery. Hence their acquittals were not of moment either.
[31] Before us Mr Tennet sought to develop an argument that the ruling itself was wrong in that this was a case of such a character that it was essential to the defence for the jury to be aware Messrs Peers and Condren had been charged, but acquitted before trial because the evidence against them was insufficient. We find it unnecessary to consider and resolve this question. The fact is that, despite the Judge’s earlier ruling, the jury was made aware of the acquittals.
[32] An issue at trial was whether witness A could have gathered certain of the details which he attributed to the appellant from watching a Crimewatch television programme. The relevant footage was shown to the jury. A police sergeant, who was the officer in charge of the case at the time of the Crimewatch programme in August 1991, gave evidence. He was cross-examined by Mr Taylor. Through questioning he established that there was no evidence to suggest more than two persons were involved in the actual robbery, although the officer said others could have been involved behind the scenes. The cross-examination continued:
A reward was offered…Yes.
$25,000 reward… Yes.
On Crimewatch… Yes.
Where we saw you announcing the reward… Yes.The two suspects we spoke of earlier, you believed were responsible, Condren and Peers, is that them… Yes.
To this day has any other information came to your knowledge other than these two are responsible for that crime… No. I believe both these persons committed that crime.
Even though they have been acquitted…
The Court:
That was a piece of flagrant behaviour on your part, and the witness does not need to answer the question. That is information the jury was not entitled to hear. It was a contemptuous piece of behaviour which I will instruct the jury on in due course.
[33] Mr Tennet also drew attention to other parts of the evidence by which the jury was made aware that witness A alleged to the police that the appellant was involved in the robbery in concert with Danny Condren and Frank Peers.
[34] It follows we think that albeit by an indirect process the jury must have been well aware that the police considered Messrs Condren and Peers were the actual offenders, that the two were charged and acquitted before trial and that the information supplied to the police by witness A was to the effect that all three were in it together. Moreover, it is plain from the terms of the summing-up that Mr Taylor referred to this aspect in the course of his closing address. Hence, regardless of the ruling, the underlying information emerged. Hence, the real issue is not whether the defence was prevented from putting relevant information before the jury, but whether the way in which the infringement of the ruling was dealt with affected the fairness of the trial process.
[35] As to that the Judge intervened during the cross-examination of the police sergeant in the terms set out earlier. True to his word he returned to the topic in the course of his summing-up. At page 9 he said:
Mr Peers and Mr Condren have never been in a trial like this and have never had a jury decide that they were not guilty. What happened was that there was a deposition hearing. At the end of that an application was made before a Judge that they shouldn’t got on trial. That Judge never saw Mr A. He had no way of assessing how good his evidence was; how reliable it was; how credible it was. But he decided, having heard from lawyers, that because in the case of Mr Peers and Mr Condren there was no surrounding material apart from what Mr A had to say, that it would be dangerous if they were to be put on trial. Now merely the saying of that of course immediately highlights the fact that it is quite different from the position here. What the Crown says here is, yes Mr A is important to our case, but there is a raft of other material which is confirmatory of what Mr A says.
So in those circumstances Mr Foreman and members of the jury, it is for you to decide whether Mr A is believable or unbelievable when taken alongside the totality of the material. If Mr Peers and Mr Condren had been convicted, you wouldn’t have been entitled to know about it. Nor should you have been told that they hadn’t been convicted because it’s got nothing to do with the issue before you. It is part of what has happened in this case of cluttering your minds up with a whole lot of irrelevancies – probably I expect trying to deflect you from the hard cold realities at the centre of this case. So you can forget Mr Peers and Mr Condren. The issue is not whether they were on the bike or not. As one policeman frankly told you, notwithstanding what that Judge did the Police are still as positive as they could be that Mr Peers and Mr Condren were the robbers. They may well be right, but it doesn’t matter. So get your mind back to your task. Don’t get deflected by matters which would have been better left out of the case altogether.
[36] And in reviewing the defence case at page 29 the Judge said:
Mr Taylor talked to you about the position of Mr Peers and Mr Condren. He warned you of the fact that because I was displeased with him for having thumbed his nose at my ruling, that I would make life difficult for him. One of the sad things about being a Judge is that you have to put up with how people behave in front of you and simply get on and objectively and impartially deal with whatever occurs. I have to do that even with Mr Taylor when he defies my ruling. You simply deal with the material which is there and determine whether this man is shown to have been actively and knowingly involved in the aggravated robbery.
[37] These excerpts capture something of the atmosphere of the trial in relation to this aspect. Plainly the Judge was distressed that the terms of his ruling were not observed. He made his displeasure clear when he halted the cross-examination and characterised Mr Taylor’s conduct as “flagrant behaviour”.
[38] On the other hand in the summing-up he was at pains to impress upon the jury that the ultimate question was proof to the required standard of the allegation that the appellant masterminded the robbery. No argument was advanced to us which challenged the Judge’s view that the Crown case was not dependent upon proof of the identity of the actual offenders. In the end result the jury must have been aware that witness A alleged the involvement of all three men in concert and, accordingly, to the extent that this consideration was relevant the jury could consider it with reference to A’s credibility.
[39] We do not accept that the comment during cross-examination or the directions in summing-up occasioned the risk of a miscarriage of justice.
The evidence of witness A
[40] Mr Tennet submitted that the Judge was wrong to let in the evidence of Mr A in the first place and that, having done so, he failed to sufficiently warn the jury as to the care it should exercise before accepting such evidence.
[41] The greater part of the first two days of the trial was taken up by a challenge to the admissibility of witness A’s evidence. On 29 June 1994 in Ruling (No. 3) the Judge held that the evidence would be received although subject to “necessary corroboration warnings”. There is no possible basis to differ from that ruling. The Judge accepted that there was a “residuary supervisory jurisdiction” to disallow the evidence of an informer where the probative value of the evidence was so deficient as to require that course. However, for reasons which he gave, the Judge did not regard this case as within that limited category.
[42] Mr Tennet’s argument was significantly based upon events subsequent to the trial. In cross-examination witness A was attacked as to his criminal background and therefore his honesty and reliability. He asserted an intention to change his ways, and said that his preparedness to give evidence against the appellant was an expression of that change of heart. In fact Mr A did not demonstrate any change of character subsequent to this case. His involvement in serious criminal activities continued.
[43] The ruling which the Judge made at trial cannot, however, be revisited with the benefit of hindsight. A ruling was required in the course of trial and was duly made. At least in relation to a subsequent development of the present kind, where a witness has not measured up to a future expectation he has conveyed to the jury, we see no scope to review a trial ruling on the basis of such failure.
[44] The further point is whether the jury was adequately warned as to the need for caution in assessing the evidence of witness A. Mr Tennet submitted that he was a witness “having some purpose of (his) own to serve” in terms of s12C of the Evidence Act 1908. We agree, since it is apparent that witness A received special treatment, including admission to the witness protection programme, in the context of his giving evidence for the Crown in this case and at least one other. It follows that there may have been some purpose to be served by A in giving evidence and therefore a risk of his giving false evidence. In such circumstances a trial Judge “shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness”. Mr Tennet argued that such was not done and indeed that several features of the summing-up had the effect of boosting the credibility of A to the detriment of the appellant, rather than the reverse.
[45] Mr Raftery did not accept these criticisms. He stressed the obvious need to read the summing-up as a whole and argued that the dependence of the Crown upon A’s evidence, coupled with the need for caution in assessing it, were central themes of the directions given to the jury.
[46] We have considered each of the specific criticisms levelled by Mr Tennet at the summing-up. At one point the Judge said:
“Whether (A) is the greatest ‘nark’ that God ever created and has a longer list of crimes than anyone else we have ever known is really an irrelevance. I imagine it was an interesting window on the criminal world for you. But that is not what the case is essentially about.
[47] Then at several points the Judge referred to evidence which was said to be confirmatory of A’s account based on the conversations he claimed to have had with the appellant. In this regard Mr Tennet disputed that there was confirmatory material, or at least the extent of it.
[48] The various points highlighted involved a focus upon a sentence or two taken from various parts of the summing-up. Read in this form, and one upon another, the excerpts may appear to suggest imbalance and even that witness A’s evidence was extolled rather than made the subject of a warning. But it is not helpful to read a summing-up in this way. Individual sentences must be read in their context particularly where, as here, several of those highlighted were drawn from the summary of the Crown case. In other words the highlighted references were assertions from the prosecutor, for example that A’s evidence was supported by “a raft of other material …”, rather than observations of the Judge.
[49] In the end the important matter is whether upon a reading of the summing-up as a whole it adequately conveyed to the jury the need for special caution in considering A’s evidence. We are in no doubt that it did. Three examples from the summing-up will suffice. At p 15 the Judge said:
Now of course one has to have regard to the fact that there was something in all this for (A). The Crown has never tried to run away from that fact. The critical issue of course is by turning Queen’s evidence (and that is what he did in the old fashioned jargon) (A) wanted a reduced sentence. It appears that he got a reduced sentence. Evidently the Judge said, you deserve 10 years – because of your help and because you have pleaded guilty (and I tell you Judges give large discounts to people who plead guilty, that is part of our criminal and penal justice system) 5 years. So he received a substantially reduced sentence. There is no doubt about that. So there was something in it for him. But the issue which may be you are going to have to ponder is, what was in it for him by naming the Taylors rather than the Smiths, or the Jones, or anyone else who didn’t happen to be locked up in prison on 21 June.
[50] And at p 17 he returned to the topic:
You must be cautious in what you do with Mr A’s evidence. Of course you must. One thing we don’t ask you as members of the jury to do, is to leave your commonsense outside with your raincoat. You bring your commonsense in with you.
[51] The balance of the summing-up is replete with observations or directions to similar effect. For example at p 28-9 in reviewing the appellant’s case the Judge said this:
In respect of (A) I do not think you need me to repeat the language which was used to describe him by Mr Taylor. He is disreputable, he was known as a ‘nark’, he was thoroughly unreliable, a hypocrite, he was just simply someone who you could totally ignore and put to one side. Well that is a critical issue in this case and you will have to determine where the truth lies.
It follows, we think, that the jury can have been in no doubt that the Crown case was dependent upon the evidence of witness A and equally that special care was necessary before the jury acted on it. In that regard considerable attention was devoted to whether there was independent evidence supportive of A’s account and, if so, to what degree. This reflected the acceptance by the Crown of the need for care. We think the requirements of s12C were amply satisfied.
[52] For these reasons this ground of appeal also fails.
Result
[53] The appeal against conviction is dismissed.
Solicitors:
Crown Solicitor, Auckland
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